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CASE NO.: Appeal (civil)  5551 of 2004

PETITIONER: Abhujit Gupta

RESPONDENT: S.N. B.  National Centre, Basic Sciences & Ors

DATE OF JUDGMENT: 18/04/2006

BENCH: B.N. Srikrishna & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T  

Srikrishna, J.

The core issue in this appeal is whether the discontinuation of  the probationer-appellant was for unsatisfactory services or for a  misconduct.

The respondent  is an institution carrying on research in basic  sciences. It is common ground that  the respondent is funded by the  Central Government and, therefore, it is  "State" within the meaning of   Article 12 amenable to the writ jurisdiction under Article 226 of the  Constitution of India.

The  appellant  was selected for the post of administrative  officer  and  joined  service under the first respondent on 10th February  1995. The letter of appointment issued to the petitioner on 7th October  1994 made it clear that the petitioner was being appointed on probation  for a period of one year.

On 20th November 1995 the appellant was served with a letter  informing him that his performance during the probationary period was  "far from satisfactory" and that it had been observed that he lacked  drive, imagination and initiative ’in the performance of his duties’. He  was informed that, despite being told time and again to improve  performance in the said areas, but with no effect.  He was advised to   improve  "in order to enable  us to consider your case for confirmation  favourably". He was issued several such letters drawing his attention to  the fact that his services left much to be desired.  His probationary  service came to be extended from time to time, the last such extension  being granted till 9th April 1998.  Finally,  by the letter dated 7.4.1998  the petitioner was informed that his service was "unsatisfactory in the  areas of drive, initiative, promptness and leadership" and that despite  advised verbally and through letter, what were deficiencies in his work  he had shown no improvement.   His attendance, office work and  attention to the academic work and the affairs of the guest house were  also unsatisfactory.  The first respondent, therefore, said "your  performance, ability and capability during the period of probation has  been examined  and your service during the period of probation is  found to be unsatisfactory and hence you are considered unsuitable for  the post you have to. The governing body is of the view that your  performance was unsatisfactory and you are  not suitable for  confirmation". For these  reasons the appellant’s probationary period  was not extended on the expiration of his probation period on 9th April  1999 without  further extension.  

The appellant challenged the order of termination of his

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service on the ground that it was a stigmatic termination by way of  punishment for alleged misconducts.   The learned single Judge of the  High Court allowed the writ petition and quashed the order of  termination and directed re-instatement of the appellant with full back- wages.  The Division Bench of the High Court, however, allowed the  letters patent appeal and held that the letter dated 7th April 1998 was not  stigmatic and that it was a legitimate exercise of assessment of  probationer’s service by the employer, and, therefore, there was no   scope for judicial interference therewith.  In this view of the matter, the  Division Bench allowed the appeal, set aside the judgment of the  learned single Judge and dismissed the writ petition. Hence, this appeal.

The learned counsel for the appellant has reiterated the  contention that the letter of 7.4.1998 does not amount to termination  simpliciter  but amounts to a stigmatic dismissal from service as serious  misconduct under the bye-laws  have  been alleged against the appellant    for which neither  inquiry  was held, nor  any procedure contemplated   under the bye-laws was adopted. The learned counsel drew our  attention to the copy of the bye-laws of the respondent under which  bye-law no. 12.3 defines Acts of Misconduct or breach of discipline  punishable under the Rules.  He particularly drew our attention to  Bye- law 12.3 (b) (d) and (h) which read as under:

"12.3 Acts of Misconduct : Any act of misconduct or breach of discipline shall be  punishable to the extent provided under these regulations. A few such  acts of misconduct or breach of discipline as listed below are illustrative  in nature. The list is not exhaustive : a)      \005. b)      Neglect of allotted work and careless or inefficient  performance of duty ; c)      \005. d)      habitual unpunctuality and irregular attendance or absence  without permission; e)      \005. f)      \005. g)      \005. h)      conduct detrimental to the interest of the Centre;"

       The learned counsel contended that the letter 7.4.1998  unmistakably alleges misconducts against the appellant, which would    fall within the parameters of these misconducts as defined under above  Bye-laws and, therefore, the prescribed procedure had to be followed.   

       Heavy reliance was placed on Dipti Prakash Banerjee vs.  Satyendra Nath Bose National Centre for Basic Sciences, Calcutta  and ors.  (1999) 3 SCC 60,where this Court held that the termination of  service of the employee in similar circumstances amounted to  misconduct.  We may mention here that it is common ground that while  the matter was pending before the learned single Judge, sometime in the  year 2005, the appellant attained the age of superannuation.   The  learned counsel for the appellant contended that in the letter dated  7.4.1998 there is reference to certain earlier letters in which the  appellant had been called a person of "perverted mind" and "dishonest,  duffer having no capacity to learn". A reading of all the letters referred  to in the letter of 7.4.1998 would clearly make out a case of allegations  of misconduct against the appellant, in the submission of the learned  counsel.  

       In Dr. Mrs. Sumati P. Shere vs. Union of India and others   (1989) 3 SCC 311  this Court pointed out that an employee on  probation should be subjected to assessment of work and should be  made aware of the defects in his work and deficiencies in his  performance. The Court observed , "Defects  or deficiencies,  indifference or indiscretion may be with the employee by the  

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inadvertence and not by incapacity to work. Timely communication of  the assessment of work in such cases may put the employee on the right  track. Without any such communication, it would be arbitrary to give a  movement order to the employee on the ground of unsuitability".  It is  the duty of the employer to inform the employee about his deficiencies  from time to time so that the employee may improve himself.

       In Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of  Medical Sciences and another (2002) 1 SCC 520 this Court considered  what should be the best to determine whether a letter of termination of  service was termination simpliciter  or stigmatic termination. After  referring to a number of authorities  including the judgment in   Parshotam Lal Dhingra vs. Union of India, AIR 1958 SC 36 and Dipti  Prakash Banerjee (supra) the Court observed (vide para 19):             "..Courts continue to struggle with semantically  indistinguishable concepts like motive" and  "foundation"; and terminations founded on a  probationer’s misconduct  have  been held to be  illegal while terminations motivated by the  probationer’s misconduct have been upheld.  The  decisions are legion and it is an impossible task to  find a clear path through the jungle of precedents."

       Having observed thus, the Court formulated the judicial  test to  determine  as to on which side of the fence the case lay, in the  following words (vide para 21):

"One of the judicially evolved tests to determine  whether in substance an order of termination is  punitive is to see whether prior to the termination  there was (a) a full scale formal enquiry (b) into  allegations involving moral turpitude or  misconduct (c) which (c) culminated in a finding  of guilt. If all three factors are present the  termination has been held to be punitive  irrespective of the form of the termination order.  Conversely if any one of the three factors is  missing, the termination has been upheld."

       It referred to Dipti Prakash Banerjee (supra) and pointed out  that in Dipti Prakash Banerjee (supra) the termination  letter  expressly made reference to  an earlier letter which had explicitly  referred to all the misconducts of the employee  and a report of an  inquiry committee which had  found that  the employee   was  guilty  of misconduct  and so the termination was held to be stigmatic and set  aside.   Finally, this Court said that  whenever  a  probationer   challenges   his termination the court’s first task will be to apply the  test of stigma or the ’form’ test.  If the order survives this examination  the "substance" of the termination will have to be found out.  What  this Court further observed in para 29 is crucial and of great  relevance:

"Before considering the facts of the case before us  one further, seemingly intractable, area relating to  the first test needs to be cleared viz. what language  in a termination order would amount to a stigma?  Generally speaking when a probationer’s  appointment is terminated it means that the  probationer is unfit for the job, whether by reason of  misconduct or ineptitude, whatever the language  used in the termination order may be. Although  strictly speaking the stigma is implicit in the  termination, a simple termination is not stigmatic. A

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termination order which explicitly states what is  implicit in every order of termination of a  probationer’s appointment, is also not stigmatic. The  decisions cited by the parties and noted by us earlier,  also do not hold so. In order to amount to a stigma,  the order must be in a language which imputes  something over and above meter unsuitability for the  job."

       In the case of the appellant before us, the record in uncertain  terms makes it clear that every time the appellants attention was drawn  to his deficiencies  and he was repeatedly advised to improve his  behaviour, conduct and discharge of work.  True, that  in some of the  letters there was intemperate language used (the appellant was also  equally guilty of doing that).  Notwithstanding the  intemperate  language, we are unable to accept the contention of the appellant’s  counsel that the letter dated 7.4.1998 indicates that the appellant was  being charged with the misconduct and, therefore, being removed from  service.  Read as a whole, the letter gives the impression that the  removal  of the appellant from service was only because the  respondents, after giving a long rope to the appellant, had come to the  conclusion that the appellant’s service was unsatisfactory and there was  no hope of his improvement.

       The real test to be applied in a situation where an employee is  removed by an innocuous order of termination is: Is he discharged as  unsuitable or is he punished for his misconduct?  In  Allahabad Bank  Officers’ Association and another vs. Allahabad Bank and others   (1996) 4 SCC 504, this Court was considering  a challenge to a  compulsory retirement and formulated a practical test to answer the  question posed above.  This Court  (vide para 17) observed that if the  order of compulsory removal form the service casts a stigma in the  sense that it contains a statement casting aspersion on his conduct or his  character, then it can be treated as an order of punishment but not if it  merely amounts to highlighting the unsuitability of the employee.  As  pointed out in this judgment, expressions like "want of application",  "lack of potential" and  "found not dependable" when made in relation  to the work of the employee would not be sufficient to attract the charge  that they are stigmatic  and intended to dismiss the employee from  service.  

       The  learned  counsel  for  the appellant,  however, strongly  contends that the "stigma" cast on the employee may not be confined to  his personal character but may also affect his capacity to work. The test,  learned counsel for the appellant submitted, is that, if what is stated in  the order of termination is read by a future employer, it prejudices  the  future employment of the employee. In the face of the law laid down in  the judgment just referred,  we are unable to accept this as the correct  test.

       In Ravindra Kumar Misra vs. U.P. State Handloom  Corporation Ltd. and another   AIR 1987 SC 2408   this Court pointed  out that in a large corporation administration is bound to be impersonal  and in regard to public officers assessment of service has got to be in  writing for purposes of record, though it cannot be assumed that such an  assessment recorded and the order of termination made with reference  to that record would automatically take a punitive character.  

       The High Court has carefully considered all the circumstances  placed before it and arrived at the conclusion that the respondent’s work  was under observation during the probationary period and that he was  given repeated opportunities to improve his performance for which  purpose his probation was  extended  from  time  to  time.  The  fact   that  the  authority  did not find him  fit for confirmation was also  brought to his notice several times and yet he was given opportunities

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of improving by extending his probationary service.  The High Court  has correctly found that the letter dated 7.4.1998 was not punitive in  nature and stated, albeit in prolix fashion, that the service of the  appellant were unsatisfactory.  The High Court points out, and we  agree, that detailed reference to all other correspondence was not  necessary, but it did not reflect any malice or bias.  Finally, as this  Court pointed out in P.N. Verma’s case (supra) "a termination order  which explicitly states what is implicit in every order of termination of  a probationer’s appointment, does not ipso facto become stigmatic".  

       For the aforesaid reasons we are of the view that there is no  substance in this appeal.  The impugned judgment of the High Court  requires no interference. The appeal is hereby dismissed without any  order as to costs.